COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71260 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION TYWAN PARKER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 13, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-334643 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor REBECCA J. MALECKAR Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: RAYMOND R. FROELICH 2100 Salem Parkway Westlake, Ohio 44145 2 O'DONNELL, J.: Tywan Parker appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of felonious assault with a firearm specification and contends that his conviction is against the manifest weight of the evidence. For the following reasons, we reject this assignment of error and affirm the conviction. On September 7, 1994, as he returned home around 2:00 a.m., Savalas Crosby saw Parker, who was sitting in a blue Cutlass Ciera parked in front of his house. As Crosby prepared to enter his home, Parker fired several shots at Crosby, striking him in the chest, with the other bullets hitting the house. Crosby's family immediately took him to the hospital, where he met Cleveland Police Officer Stanley Hardy and reported that Parker shot him. Later that day, when Detectives Hughey and Johnstone contacted Crosby about the incident, Crosby again identified Parker as his assailant and selected his photo from an array of photographs at the police station. Based upon their investigation and Crosby's identification, the police arrested Parker, the grand jury indicted him for felonious assault with a firearm specification, and the case proceeded to trial. At trial, the state called Crosby, who, after admitting that he had been previously convicted of aggravated assault, testified that on the night of the shooting, he recognized Parker leaning out 3 of the passenger side window of the blue Cutlass with a gun in his hand because he had known Parker for seven or eight years. The state also called Lindsey Carter, whose parents lived downstairs from the Crosbys, and he testified that after seeing the bullets that hit his parents' home, he and Derrick Arthur arranged to meet with Parker to discuss the incident. Carter further testified that Parker admitted he shot at the house on the night Crosby was shot, apologized for the shooting, and explained he did not know Carter's parents lived there. The evidence also showed that Carter had been convicted of carrying a concealed weapon. The state's next witness, Jervon Austin, the driver of the car the night of the shooting, testified that he and Parker had rented a blue Oldsmobile Cutlass Ciera in exchange for some crack cocaine. He admitted that he drove the car with Parker in the front passenger seat and another friend, Kiro, in the back and that he parked the car in front of Crosby's driveway as Parker and Kiro shot at Crosby. Austin also admitted that he decided to testify in exchange for the prosecutor's promise to write a letter to the parole board on his behalf. The defense, in its case in chief, called Derrick Arthur, who testified about the meeting with Carter and Parker and stated that during that meeting, Parker denied the shooting. Following final arguments and the court's jury charge, the jury concluded its deliberations and returned a verdict finding Parker guilty of felonious assault with a firearm specification. The court then imposed a sentence of three years actual incarceration for the 4 firearm specification, consecutive with four to fifteen years for the felonious assault conviction. Parker now appeals and assigns one error for our review. It states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Parker argues that his conviction is against the manifest weight of the evidence because the state's case consisted of substandard police work and the conflicting testimony of three convicted felons. The state contends that Parker's conviction is not against the manifest weight of the evidence, which established his guilt beyond a reasonable doubt. The issue then presented for our consideration is whether Parker's felonious assault conviction is against the manifest weight of the evidence. The test to be applied when reviewing a claim involving the manifest weight of the evidence is stated in State v. Martin (1983), 20 Ohio App.3d 172, 175, as recently cited by the Ohio Supreme Court in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. 5 Here, the state assumed the burden to prove the elements of felonious assault beyond a reasonable doubt. R.C. 2903.11 defines felonious assault to include the prohibition that: (A) No person shall knowingly: * * * (2) Cause *** physical harm to another *** by means of a deadly weapon ***. A person acts knowingly when he is aware his conduct will cause a certain result. Physical harm to another means any injury caused by a deadly weapon. A deadly weapon means any instrument, device or thing capable of inflicting death. Upon examining the evidence in this case and considering the credibility of the witnesses, the state has presented evidence from which the jury could have concluded guilt beyond a reasonable doubt. Both Carper and Austin testified that Parker did the shooting, and the jury had the opportunity to consider the prior criminal records of these witnesses. In addition, the state offered medical records from Merida Huron Hospital to corroborate the injury to Crosby and to evidence the element of physical harm caused by Parker. After reviewing the record in this case and weighing the evidence and all reasonable inferences, and after considering the credibility of the witnesses, we have determined that the jury clearly did not lose its way and create a manifest miscarriage of justice. Accordingly, this conviction is not against the manifest weight of the evidence. This assignment of error is overruled, and the judgment of the trial court is affirmed. 6 7 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., ROCCO, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .